Tuesday, June 20, 2017

Yes, President Trump May Face Credible Obstruction-of-Justice Claims

Before we dive in to the tangled and only partially revealed web of facts and allegations surrounding Robert Mueller’s investigation of Donald Trump, allow me to make two things clear. First, at present, I do not believe that sufficient evidence exists to credibly claim that the president has obstructed justice. Second, I agree with my colleague Andrew McCarthy’s assessment that it is entirely plausible (maybe even probable) that Trump fired James Comey not to stop or obstruct any investigation, but rather because Comey wouldn’t say in public what he’d admittedly said behind closed doors — that Trump wasn’t being personally investigated for colluding with Russia. My beliefs, however, are based on partial information — on only those facts that are in the public domain.

In reality, Trump isn’t out of the woods, not by a long shot, and he has to understand that his fate depends not just on the things that happened before, but also on his self-discipline going forward. Even if he is entirely innocent of collusion with Russia, and even if he had absolutely nothing to do with any wrongdoing by aides such as Michael Flynn, Paul Manafort, or Carter Page, he could ultimately destroy his own presidency. Here’s how.

First, as I’ve written before, it’s common for investigators to indict or convict the targets of their investigations for misconduct committed during the investigation, rather than for the alleged crimes that sparked the initial inquiries. Scooter Libby and Martha Stewart are perhaps the two most recent examples. Libby was convicted of obstructing justice and lying to the FBI during the investigation of the “Plame affair” — the leak of Valerie Plame’s CIA identity to the media. No one was ever convicted for the underlying leak. Stewart was found guilty of obstructing an investigation into a stock sale. She was never convicted of actual securities fraud.

This means that federal investigations are extraordinarily perilous affairs. There are good reasons why our nation criminalizes obstruction of justice — we don’t want citizens actively impeding law enforcement. At the same time, prosecutors can be overzealous in their attempt to secure convictions and can lay numerous investigatory traps for unwary defendants. Give prosecutors room and reason to run, and they will very often chase down their prey.